Customary humanitarian law: when custom becomes the norm

14-03-2005 Interview

The two authors of the study on customary international humanitarian law explain its significance and why it offers the hope of greater protection for conflict victims.

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Louise Doswald-Beck, Professor of International Law, Graduate Institute of International Studies, Geneva: Director, University Centre for International Humanitarian Law, Geneva

1. How timely do you consider this study to be, given the widespread public interest in the law of armed conflict at the moment ?

The fact that humanitarian law has been talked about a lot these days means that this study really has come at an opportune time. The utility is the fact that people can look at a series of rules which are fairly simply indicated which is much easier to do that go to various treaties and try to work out what applies and what does not apply.

2. Are the rules that are included in this study binding on all people at all times?

The rules in the book are binding on all states, all parties to the conflict at all times. That is what makes it simple to use for, for example, a journalist, or anyone else who is interested. They do not have to try and find out what treaty binds who, is this customary or not. It is all there in a very simple fashion in the book.

3. What difference is the study likely to make in the medium term to victims of conflict, for example in Darfur?

I hope the fact that we have a list of clear rules means that people can demand their rights more straightforwardly, that people can be more aware of what they are supposed to do or not do and that therefore people, hopefully, will abide more with these rules now that they are more easily accessible.

4. Does the fact that the ICRC carried out this study give it any special significance?

The fact that the ICRC carried out the studies is important because it has a credibility as far as international humanitarian law is concerned. Everyone is aware that the ICRC takes this area of law seriously; it has expertise in this area of law; it does not make wild claims as far as the law is concerned - it is know to be fairly conservative in that regard, and therefore the fact that it has carried out the study means that people can have confidence that it is an accurate representation of customary law.

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Jean-Marie Henckaerts, legal adviser, ICRC

1. When does a rule become part of customary law?

A rule becomes customary when it receives widespread support in the international community. So when a rule emerges, for example, a new prohibition like the prohibition of starvation (starvation was for a long time a practice commonly used in armed conflict), and then receives gradually more and more support until a certain point where that support is widespread representative and uniform, then we can say that rule, that prohibition on starvation has become customary. So that is an assessment that has to be made on the basis of research into practice and what happens in the battlefield, what statements are made, and in this particular case the ICRC was asked by the international community to carry out this research and to make this assessment.

2. How was the study carried out?

Customary law is based on the practice of states. We have to go first and foremost to states themselves and to look at their actual practice. So we did research in some 47 countries that were identified on the basis of their current experience or past experience with armed conflict. So we did research in all the states of the Former Yugoslavia, for example in a number of African States, Asian States, that had had experience with armed conflict. We used a network of local interlocuteurs that we worked with and provided this research to us and, in addition to these 47 countries, we went actually beyond that and we also tried to seek information on other states that were not already covered by these reports.

3. How can these rules be enforced?

As with all international humanitarian law, of course the efficiency of this law depends to a great extent on the knowledge and awareness of these rules by the fighters, commanders and so forth, so it is still a challenge to disseminate it to make sure that this law is known and to disseminate it widely. Customary international law is the same as all international law as humanitarian treaty law also, but this law can be enforced by national courts, can be enforced by international courts, by the United Nations, by the Security Council, bilaterally between states, via all the existing mechanisms, but to come back to dissemination first and foremost of course, within the armed forces, within armed opposition groups by commanders making sure that their troops behave correctly and stick to the rules that exist.